Schosser v Police

[2014] NZHC 3029

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000114 [2014] NZHC 3029

HORST MARIA SCHOSSER Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	10 November 2014
Appearances:	Karen Harding for the Appellant Lewis Mills for the Respondent
Judgment:	1 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by  on 1 December 2014 at 9:30am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

SCHOSSER v NEW ZEALAND POLICE [2014] NZHC 3029 [1 December 2014]

Introduction

[1]      At 12:30am on 28 August 2013 Mr Schosser was stopped by the Police and breath tested at Red Beach.  He elected a blood test which returned a result of 172 milligrams of alcohol per 100 millilitres of blood.

[2]      He was charged with driving with excess blood alcohol, third or subsequent offence, under ss 56(2) and 56(4) of the Land Transport Act 1998.

[3]      This was because he had two prior convictions in 2005 and 2007 for drink driving.

[4]      Mr  Schosser  was  fined  $2,000  and  ordered  to  undertake  120  hours  of community work.   He was disqualified from driving for the minimum mandatory period of one year and one day and was ordered to pay Court costs of $130, medical expenses of $100 and analyst fees of $93.   The maximum penalty is two years’ imprisonment or a fine of up to $6,000 with a minimum period of disqualification of one year.

[5]      Mr Schosser paid the fine in full and all associated costs on the day he was sentenced.   He now appeals that sentence on the grounds that it is manifestly excessive.   Particular issue is taken with the imposition of the community service order given his work commitments and obligations to others.   It is also submitted that insufficient weight was given to his personal circumstances and, in particular, the emotional stress and pressures he was suffering at the time of the offending.

Approach on appeal

[6]      The powers of this Court in relation to an appeal from the District Court is

covered by s 250 of the Criminal Procedure Act 2011 (“the CPA”).

[7]      The appeal must be allowed if this Court is satisfied that:

(a)       for any reason there is a reason there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

[8]      If those requirements are not satisfied this Court must dismiss the appeal.

[9]      In Tutakangahau v R the Court of Appeal confirmed that s 250(2) of the CPA was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. 1   Accordingly this Court must proceed on the gross “error principle”2 and even if the Court is satisfied that the sentencing Judge erred the sentence imposed should not be disturbed unless the Court is satisfied that a different sentence should

have been imposed.

District Court decision

[10]     Judge Aitken commenced her judgment by noting that Mr Schosser’s alcohol level was more than double the legal limit a factor which necessarily placed him and other road users at risk.  She noted that Mr Schosser was a very hard working man with a supportive wife.  Specific mention was made of Mr Schosser’s father and the difficult circumstances surrounding his care.  This is a topic to which I will return. While noting Mr Schosser’s good character and his working responsibilities the Judge returned to her concerns about the offending and, in particular, the high blood alcohol level involved noting that the sentencing exercise engages not only the need to address the causes of the offending and the requirement to hold offenders accountable, but also requires the Court to ensure that there is some level of parity between offenders and offending.

[11]     Her Honour indicated that Ms Harding, for Mr Schosser, had persuaded her not to impose a weekend curfew on community detention.  The Judge assessed that the chances of re-offending were “very small” and was thus minded to impose a sentence which would not affect Mr Schosser’s liberty.

Appeal

[12]     Ms Harding, in detailed and helpful written and oral submissions, submits that the sentence imposed was manifestly excessive in all the circumstances.   She submits  that  a  fine  in  the  range  of  $1,000  to  $1,200  in  conjunction  with  the mandatory minimum 12 months of disqualification would have been appropriate as the least restrictive sentence taking into account the circumstances which led to the offending, the efforts of rehabilitation and Mr Schosser’s work commitments.  She submits that the substantial fine imposed is sufficient to denounce Mr Schosser’s conduct and to protect the community.   She further submits that the sentence of community work on top of the substantial fine did not serve any additional purpose having regard to s 7 of the Sentencing Act 2002 submitting that such a sentence “sets up [Mr Schosser] to fail”.

[13]     There are two particular circumstances which Ms Harding relies on in this appeal and in support of her submission the sentence of community work should not have been imposed. These are, first, Mr Schosser’s personal circumstances and work commitments and secondly the special circumstances which lead to the offending.  I shall deal with each of these in turn.

Personal circumstances and work commitments

[14]     Mr  Schosser  is  a  30-year  old  self  employed  man  working  as  a  project manager and tiler.   He normally works six  days  a week.   His work frequently requires him to be out of Auckland for a considerable period.  Since July 2014 he has had a limited licence the terms of which permit him to drive for work purposes in Auckland and in specified areas outside Auckland.

[15]     It  is  plain  that  Mr Schosser is  an  extremely hard working and  effective tradesman whose effective supervision of staff is central to his ability to maintain his business.

[16]     Ms Harding submits that the sentence of community work imposes a special and elevated degree of hardship given Mr Schosser’s work responsibilities in relation to himself and others.

Circumstances leading to the offending

[17]     Secondly, Ms Harding submits that Mr Schosser was under “enormous … stress and emotional pain” at the time of the offending.  His father was terminally ill with cancer.  He died just under a week after the offending.

[18]     Through August 2013 Mr Schosser assisted in the care of his father who had been discharged from hospital to die at home.   In addition to his daytime work commitments Mr Schosser cared for his father at night.

[19]     On the date before the offending Mr Schosser worked from 7:00 am to 4:00 pm when a friend suggested they should go fishing to provide Mr Schosser with some respite.  They went surf casting at Little Manly Beach following which they retired to a friend’s home for a barbeque and drinks.  On his way home Mr Schosser was stopped by the Police.

Analysis

[20]     Ms Harding refers me to a large number of District Court decisions to support her submission that the sentence imposed was manifestly excessive.

[21]     A review of the District Court authorities and decisions of this Court reveals a wide range of sentences imposed in cases following a third conviction for drink driving.

[22]     Some indication of the range is apparent from the following analysis of Court of Appeal and High Court cases.

[23]     In  R  v  Wilson  the  Court  of  Appeal  upheld  a  sentence  of  150  hours’ community work and 15 months disqualification for a third conviction for drink driving where the alcohol level was 127 milligrams of alcohol per 100 millilitres of blood. 3    The sentence was held to be “well within the range available”.4

[24]     In Taiatini v Police Winkelmann J heard an appeal against a sentence of 150 hours’ community  work  and  12  months  disqualification  for  an  offender’s  third conviction of drink driving involving an alcohol level of more than twice the legal limit.5   In that case the offender had only backed out of his driveway when stopped. It was held that “the sentence sits well within the usual range of sentences for offending of this type”.6    The aggravating features included that the appellant was twice the legal limit and was driving whilst disqualified.

[25]     In Loo v Police a sentence of 200 hours of community work alongside a disqualification was upheld where the blood alcohol reading was 136 milligrams of alcohol.7

[26]     In Hurstfield v Police a fine of $750 was ordered (along with other associated costs) on a third drink driving conviction where the level was 93 milligrams of alcohol.8     The index offending occurred in 2011 and the previous drink driving offences were in 1992 and 2009. The sentence was confirmed on appeal.

[27]     In Bell v Police Hansen J confirmed a sentence of $1,000 fine and 12 months’

disqualification for a third offence.  The two prior convictions were approximately

20 years old.9

[28]     Against that background I am of the view that the facts of this case are broadly similar to those which confronted Winkelmann J in Taiatini.  I acknowledge that against Taiatini and on the Court of Appeal’s authority in Wilson the sentence imposed on Mr Schosser could be said to fall within the upper range available to the sentencing Judge.

[29]     However,  absent  from  those  cases  is  the  strong  personal  circumstances present in the current case.  In Mr Schosser’s circumstances a sentence of 120 hours’ community work will impact on his employment and that, combined with the fine,

places the sentence outside the range available to the sentencing Judge.

5 Taiatini v Police HC Rotorua CIV-2005-463-59, 7 October 2005.

6 At [23].
7 Loo v Police HC Auckland CRI-2010-404-394, 21 February 2011.

8 Hurstfield v Police HC Auckland CRI-2011-404-195, 11 August 2011.

[30]     Additional  to  this  is  the  very  difficult  personal  circumstances  which Mr Schosser, as a dutiful and loving son, was facing with the imminent death of his father and the attendant stresses that unenviable situation imposed.   It plainly contributed to his lapse of judgement on the night and his decision to get behind the wheel.

[31]     However, this is Mr Schosser’s third drink driving conviction.   That factor cannot be ignored notwithstanding the time which has elapsed since his previous offending.   Nor can I ignore the fact that Mr Schosser’s blood alcohol level was more than double that which is permitted.

[32]     Thus I think that a reduced community work sentence is appropriate.  This reflects the difficulties that community work will pose to Mr Schosser’s working commitments, but also captures the seriousness of the offending.

Result

[33]     The appeal is allowed and the sentence of 120 hours’ community work is

quashed and a sentence of 60 hours’ community work is imposed.

Moore J

Solicitors:

Karen Harding Law, Auckland
Crown Solicitor, Auckland