Schroder-Mann v Police

[2019] NZHC 152

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000121

CRI-2018-409-000122 [2019] NZHC 152

BETWEEN

BENJAMIN SCHRODER-MANN

Appellant

AND

NEW ZEALAND POLICE

DEPARTMENT OF CORRECTIONS

Respondents

Hearing:

7 February 2019

Appearances:

C Nolan for Appellant

S Bicknell for Respondents

Judgment:

14 February 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1]    On 2 November 2018 Judge Garland sentenced the appellant to 15 months' imprisonment on charges of driving with excess breath alcohol (3rd or subsequent); breaching a zero-alcohol licence; breaching Police bail; and breaching a sentence of community work. The appellant appeals that sentence on the ground that it is manifestly excessive.

Facts

[2]    On 22 May 2018, Police stopped the appellant while driving. At the time he held a zero-alcohol licence. An evidential breath test returned a positive result of 838mg of alcohol per litre of breath. The appellant explained that he had been drinking

SCHRODER-MANN v NEW ZEALAND POLICE [2019] NZHC 152 [14 February 2019]

that night and a friend was sober driving. That friend was involved in a collision and not in a condition to drive. At that point, he made the decision to drive them home.

District Court decision

[3]    Judge Garland outlined the facts relating to the appellant’s drink-driving offending, as set out above and noted that the appellant had six previous convictions for driving with excess breath alcohol. He had been issued a zero-alcohol licence on 1 July 2017, but acknowledged to his probation officer that he had driven after consuming alcohol on more than three occasions since then. He also acknowledged a problem with methamphetamine use.  The Judge noted that the appellant had nearly

$20,000 in outstanding fines and so “the community-based approach had not worked”.

[4]    The Judge adopted a starting point of 16 months' imprisonment for the excess breath alcohol and breach of zero alcohol licence. He then gave credit for guilty pleas, and an end sentence of 12 months was imposed on each of those two charges. He also disqualified him from driving for two years.

[5]    In relation to the charge of breach of community work, the Judge took a one month starting point for that offending. He also granted the appellant’s application to cancel it and noted he therefore needed to be re-sentenced for the earlier charge of driving whilst suspended (third or subsequent) and adopted a three month starting point for that offence. From the combined four month sentence on those two charges, he gave a discount of one month for guilty pleas and the ten hours work already done.

[6]The end sentence imposed was 15 months' imprisonment.

[7]    The Judge declined to impose a home detention sentence, noting that the appellant had “previously had the benefit of home detention and community based sentences” but that had failed to change his behaviour. He was not satisfied that another sentence of home detention would be likely to have any rehabilitative benefit.

Principles on appeal

[8]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.2 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3

Submissions

The appellant’s submissions

[9]    Mr Nolan, for the appellant, submits that the end sentence was manifestly excessive because the starting point was too high in relation to both sets of charges. The appellant relied on the decisions of Clotworthy v Police,4 a decision of Wild J which reviewed a range of authorities in relation to driving with excess breath alcohol convictions, and of Whata J in Samson v Police,5 where the High Court again discussed sentencing for charges of driving with excess breath alcohol.

[10]   In Samson, the Court acknowledged that Clotworthy provided the frame for sentencing for EBA offending (third and subsequent) in terms of aggravating and mitigating factors. The Court then set out some general guidance in relation to starting points for such offending:

(a)No seriously or only moderately aggravating factors, 9-12 moths;

(b)One or more aggravating factors, 12-18 months;

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

3      Ripia v R [2011] NZCA 101 at [15].

4      Clotworthy v Police (2003) 20 CRNZ 439

5      Samson v Police [2015] NZHC 748.

(c)Multiple offences with serious aggravating factors, 18-20 months;

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

[11]   In light of Clotworthy and Samson, Mr Nolan submits the following factors are relevant to the appellant:

(a)Breath alcohol level: 838 micrograms;

(b)Length of time since last relevant conviction: Mr Schroder-Mann's last excess breath alcohol conviction was February 2014 with an offence date of 22 December 2013;

(c)Manner of driving: There is no suggestion that Mr Schroder-Mann's driving was poor;

(d)Whether the defendant was disqualified or forbidden from driving at the time: Mr Schroder-Mann was not disqualified from driving, he did have a zero-alcohol licence;

(e)Plea: Mr Schroder-Mann entered guilty pleas at the earliest opportunity;

(f)The sentences imposed for previous EBA convictions and response: Mr Schroder- Mann was sentenced to 9 months imprisonment in 2014 in relation to a raft of charges including an excess breath alcohol third or subsequent, driving whilst disqualified time two, unlawfully takes motor vehicle, failing to stop when followed by red and blue flashing lights and driving in a dangerous manner;

(g)Previous convictions: Mr Schroder-Mann has six previous convictions for driving with excess breath alcohol dating back to 2010;

(h)Remorse and willingness to confront problems: Mr Schroder-Mann had expressed a willingness to engage with rehabilitative services and acknowledged his ongoing needs; and

(i)Personal and family circumstances: Mr Schroder-Mann was residing with his mother; the address was available for a sentence of home detention.

[12]   Mr Nolan submitted that there were only moderately aggravating factors in this case so a starting point for the excess breath alcohol charge should have been nine to 12 months’ imprisonment.

[13]   In relation the breach of community work, the appellant acknowledged that he could not complete the remaining hours of community work and filed his own application to cancel, so an alternative sentence was to be sought. The maximum penalty for a charge of breach of community work is three months  imprisonment. Mr Nolan submitted that the District Court Judge in effect imposed a starting point of four months imprisonment on this charge which was reduced by one month on account of the guilty plea. The appellant had one previous conviction for breaching community work in 2010 and Mr Nolan submitted that an appropriate starting point for this charge was one months' imprisonment.

[14]   In conclusion, the appellant says the total starting point should be in the range of 10 - 13 months’ imprisonment.

[15]   The appellant also considers Judge Garland’s refusal to consider home detention ignored s 8 of the Sentencing Act, in that the Judge did not impose the least restrictive outcome appropriate in the circumstances. Mr Nolan notes the appellant has received sentences of home detention on three previous occasions in 2011. No breaches of this sentence are noted in his conviction history, although the appellant does have one conviction for a breach of post detention conditions. He pointed out that the appellant was aged 25 years old at the time of sentencing and may have benefitted from a rehabilitative sentence. An address was available residing with his mother who was supportive of a home detention sentence.

The respondent’s submissions

[16]   The respondent also relied on Samson v Police as setting out a framework to deal with excess breath alcohol offending. The respondent submits that the main aggravating feature in this case is the high level of intoxication, particularly when he was subject to a zero alcohol licence. This places it in the second category of Samson warranting a starting point of 12 to18 months.

[17]   In addition, the respondent relies on several cases which Ms Bicknell says supports the starting point adopted. In Ruru v Police,6 Thomas J upheld an 18 month starting point for driving with excess breath alcohol (third or subsequent). The appellant in that case was driving in breach of his restricted licence conditions and had a breath alcohol level of 740 micrograms per litre of breath. He also had five previous convictions for driving with excess breath alcohol. On appeal, Thomas J made no adverse comment about the starting point. She did, however, replace imprisonment with a period of home detention, albeit adjusting it for time served.

[18]   In Toetoe v Police, Brewer J held that a starting point of 16 to 18 months' imprisonment was justified on one charge of driving with excess breath alcohol (third or subsequent), where the appellant was found to have a breath alcohol reading of 692 mg of alcohol per litre of breath and it was his eighth conviction for driving with excess breath alcohol.7 Similarly, in Koopu v Police, Woodhouse J upheld a starting point of 16 months' imprisonment for a seventh driving with excess breath alcohol charge.8

[19]   The respondent submits that the appellant was subject to zero alcohol license, yet was three times over the adult legal limit. That is a significantly aggravating feature. Thus, although the starting point was stern, it was within the range proposed by Sampson.

6      Ruru v Police [2018] NZHC 114.

7      Toetoe v Police [2013] NZHC 2686.

8      Koopu v Police [2013] NZHC 1356.

[20]   With respect to the breach of community work and need to re-sentence him for his sixth driving while suspended charge, the respondent says Judge Garland adopted a four-month starting point for the combination of these two charges. The respondent relies on Henare v R,⁹ Townshend v Ministry of Health,10 and Fox v Police,11 where uplifts of four, six and nine months were respectively held to be appropriate for fewer driving while disqualification charges. In this case the respondent notes that the appellant also has six previous unrelated driving convictions, including failing to stop when followed by red and blue flashing lights, dangerous driving and being a restricted driver carrying unauthorized passengers. Although the Judge did not uplift the sentence, the respondent submits it would have been open to him to do so.

[21]   For these reasons, the respondent submits that the end sentence is within range. While the starting point for the excess breath alcohol offending is perhaps at the higher end of the usual range, the starting point for driving while suspended is much lower than in comparable cases, and there is no reason to impose a different end sentence.

[22]   With respect to the refusal to grant home detention, the Crown submits that deciding between imprisonment and home detention involves a discretionary exercise having regard to the principles and purposes of sentencing. On appeal, the focus is on identification of an error, having regard to the discretionary nature of the decision.12 Where a defendant is on the cusp of home detention, and there is no error, the Court ordinarily defers to the assessment of the sentencing Judge.13

[23]   Judge Garland was not satisfied that another sentence of home detention would have any rehabilitative benefit. As such, only a sentence of imprisonment was sufficient to adequately meet the purposes and principles of sentencing. The respondent submits that there is no identifiable error in Judge Garland's approach and that it was open to him to decline to impose home detention.

9      Henare v R [2017] NZHC 2397

10     Townshend v Ministry of Health [2017] NZHC 1993

11     Fox v Police [2017] NZHC 573.

12     Doolan v R [2011] NZCA 542

13     R v D [2008] NZCA 254 at [66], Otufangavalu v R [20101 NZCA 585 at [10].

Analysis

[24]   Traditionally, sentencing judges dealing with breath/blood alcohol related offending have referred to the judgment of Wild J in Clotworthy v Police, where the Judge reviewed a number of High Court and District Court decisions for the offence of excess breath/blood alcohol (third or subsequent) and also identified a number of aggravating and mitigating factors which may be relevant in assessing the starting point in each case. Clotworthy was considered by Whata J in Samson v Police. The Judge commented as follows:

…

[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):

(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

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

[25]Whata J also made some general observations about starting points as follows:

[15]Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of [excess breath alcohol] (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, 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;

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

(c)Multiple   offences   with   seriously   aggravating   factors, 18-20 months; and

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

[26]   In this case the seriously aggravating factor is the high level of intoxication while driving. The appellant was more than three times the legal limit for adults. This was exacerbated by the fact he was on a zero alcohol licence at the time which comprised a separate charge. The history of six previous convictions is also an aggravating factor. A starting point was within the range of 12 to 18 months was entirely warranted in these circumstances. I do not consider the 16 month starting point was too high.

[27]   The Judge then had to take account of the charges of driving while disqualified offending and breach of community work. In my view, the total sentence on these two charges was lenient having regard to the cases the respondent referred to. Furthermore, the appellant is incorrect to characterise the four month starting point as entirely a sentence for the breach of community work.

[28]   The Judge clearly differentiated between a one month starting point on that charge and a three month starting point when re-sentencing on the charge of driving while disqualified.

[29]   Overall, I am satisfied that the end sentence is within range and it should not be interfered with on appeal.

[30]   The high point of the appellant’s submissions on the appeal against refusal to grant home detention was that the appellant “may have benefited from a rehabilitative sentence”. No specific information was given to support this assertion. As already noted, the Judge observed that the appellant had received three previous sentences of home detention, but this had not changed his behaviour. It is clear that the Judge considered, but rejected home detention for this reason.

[31]   I can see no error in the Judge’s reasoning and I decline to impose home detention in lieu of a prison sentence.

Conclusion

[32]The appeal is dismissed.

Solicitors:

A M S Williams, Barrister, Christchurch Raymond Donnelly & Co., Christchurch