Sharp v Police
[2015] NZHC 791
•21 April 2015
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2015-443-015 [2015] NZHC 791
BETWEEN BRENDON KEITH SHARP
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 April 2015 Counsel:
M Boyd for Appellant
N L Laird for RespondentJudgment:
21 April 2015
(ORAL) JUDGMENT OF HEATH J
Solicitors:
Crown Solicitor, New Plymouth
Counsel:J C Hannam, New Plymouth (M Boyd)
SHARP v NEW ZEALAND POLICE [2015] NZHC 791 [21 April 2015]
The appeal
[1] Mr Sharp appeals against sentences imposed in the District Court at New Plymouth on 13 March 2015, on charges of driving with an excess breath alcohol concentration and driving while suspended. Judge Roberts sentenced him to a period of imprisonment of eight months. He also disqualified Mr Sharp from holding or obtaining a driver licence for a period of 15 months and imposed special post-release conditions designed to deal with alcohol and drug related problems that the Judge
considered had to be addressed.1
The facts
(a) Driving with excess breath alcohol concentration
[2] So far as the driving with an excess breath alcohol concentration was concerned, that arose out of an incident at 4.15pm on 5 December 2014. At that time Mr Sharp was driving a vehicle north along State Highway 3, near Egmont Village. He was stopped for speeding. While speaking to a police officer, Mr Sharp admitted having consumed alcohol before driving. Following the completion of breath test procedures, a result of 557 micrograms of alcohol per litre of breath was obtained. The legal limit is 400 micrograms of alcohol per litre of breath.
[3] Mr Sharp has two previous convictions for driving with an excess breath alcohol. One was in 1996 and the other in 2012.
(b) Driving while suspended
[4] The driving while suspended charge arose out of an incident on 21 January
2015. At that time Mr Sharp was subject to a suspension as a result of the accumulation of demerit points, and was also on Court-ordered bail following appearances on the excess breath alcohol charge.
[5] The incident occurred at 6.30pm. Mr Sharp was driving his father’s motor
vehicle on Carrington Street, New Plymouth. Inquiries revealed that he was a
1 Police v Sharp [2015] NZDC 4069.
suspended driver. By this stage, he had appeared on two occasions before the
District Court on the excess breath alcohol charge.
[6] Mr Sharp has two prior convictions of driving while disqualified; the most recent of which occurred on 30 October 2000. The accumulation of demerit points to which I have referred resulted in Mr Sharp being suspended from driving a motor vehicle from 8 December 2014 until 4 March 2015.
[7] A separate issue arose at sentencing as to whether the vehicle that Mr Sharp was driving should be confiscated. After considering a statutory declaration from Mr Sharp’s father, no order was made. Nothing more need be said about that.
Personal circumstances
[8] Mr Sharp is 40 years old. He has appeared intermittently before the Courts between 1996 and 2015. There was a period of about nine years when he did not appear, between October 2003 and July 2014. Mr Sharp’s last conviction for driving with an excess breath alcohol concentration was in August 2012.
[9] The driving in issue was not of a type that would give rise specifically to road safety concerns, though that is always in the forefront of a sentencing Judge’s mind when dealing with charges that involve both alcohol and driving while disqualified. The fact that Mr Sharp was prepared to drive while suspended so soon after being charged with excess breath alcohol and on the day before he was due to appear in Court following a remand on bail, is disturbing.
[10] Furthermore, Mr Sharp attended for interview by a probation officer in circumstances where he was intoxicated. Understandably, in those circumstances, he did not present well. The position is best put in the words of the probation officer:
Mr Sharp appears for sentencing for Driving with Excess Breath Alcohol 3rd or Subsequent and Driving While Suspended due to excessive demerit points. His last court appearance for similar offending was in 2012. The circumstances of the offending where he was speeding while under the influence of alcohol and later gave false details to a Police Officer, indicate an escalation in seriousness and frequency of offending. He is assessed as medium risk of reoffending and harm to others.
In the past Mr Sharp has been subject to three sentences of Periodic Detention, interestingly two of these were for driving offences and date back to 1999-2000. Community probation records do not indicate any non- compliance issues with these sentences. Nevertheless, given that he recently drove while suspended and has two convictions for driving while disqualified, combined with his attitude and lack of insight at interview, he is assessed as unlikely to comply with a community based sentence.
As detailed in the headings section Mr Sharp’s attitude at interview was abysmal, as was his lack of ability to understand the consequences of his actions. It is disappoint that given his age that Mr Sharp has not desisted from offending. Therefore, a sentence of Imprisonment with Release Conditions is recommended. Should the Court wish to consider a sentence option other than this, electronic monitoring and other community based sentences are available.
[11] The probation officer believed that Mr Sharp minimised his offending and had given explanations that were plainly wrong. For example, on a visit to check a proposed home detention address where Mr Sharp had said he was living, there did not appear to be any belongings to suggest that he resided there. Also, the probation officer was told that Mr Sharp was in receipt of a benefit from Work and Income New Zealand yet information was put before the sentencing Judge that he had been employed since January 2015. All of those factors are concerning so far as Mr Sharp’s personal circumstances are concerned.
Sentencing in the District Court
[12] In the District Court, Judge Roberts determined that a sentence of imprisonment was necessary to respond to Mr Sharp’s offending. There were a number of factors that he took into account in forming that view.
[13] I think it is fair to say that the offending while on bail, the day before he was due to appear in the District Court, coupled with his presentation at interview with the probation officer and what the Judge considered were “untruthful” statements influenced him significantly. Plainly, the Judge took the view that Mr Sharp was incapable of moderating his behaviour, at least at the time of sentencing.
[14] Judge Roberts took a starting point of eight months imprisonment on the driving with an excess breath alcohol charge. On the driving while suspended charge, a period of four months imprisonment was added so that the adjusted starting
point was one of 12 months. A credit was given for the guilty pleas of 25% in accordance with Hessell v R.2
[15] The Judge considered whether home detention would be an appropriate option. The Judge was not prepared to order home detention. He said:
[22] Home detention would have been quite inappropriate. Your offending is now becoming serious. You have two convictions now for excess breath alcohol within the relatively short period compounded by your unwillingness or inability to abide suspensions, elevate you to an arena of real risk. I have you identified as a person quite otherwise disinterested in change. You offend on bail, your attitude; particularly your ability to be truthful even at interview is also alarming.
[23] You have been undeterred by earlier sentences and are not deemed to be able to comply with the rigors of that sentence.
Analysis
[16] Ms Boyd, for Mr Sharp, has submitted that the sentence imposed was both manifestly excessive and inappropriate.3 While initially contending for a sentence of community detention, she focussed her submissions ultimately on home detention. The issue is whether the Judge erred, as a matter of discretion, in determining not to commute the sentence of imprisonment to home detention.
[17] In my view, it was open to the Judge to take the view that home detention was inappropriate in the circumstances, for the reasons he gave.4 On ordinary principles relating to appeals against the exercise of discretion,5 I am not persuaded that this Court should intervene.
[18] However, as I indicated to counsel, I do have some concerns about the length of imprisonment imposed. The maximum penalty for charges of driving with excess breath alcohol concentration and driving while suspended or disqualified simpliciter is one of three months imprisonment. That increases on a third and subsequent
occasion to one of two years imprisonment. It is appropriate to take account of the
2 Hessell v R [2011] 1 NZLR 607 (SC).
3 See the grounds for appeal set out in s 250(2) of the Criminal Procedure Act 2011.
4 Police v Sharp [2015] NZDC 4069, at paras [22] and [23], set out at para [15] above.
5 As an illustration, see Doolan v R [2011] NZCA 542 at paras [35]–[37].
period that passed between the various convictions in determining an appropriate starting point.
[19] I have no doubt, however, that the Judge’s articulation of aggravating factors, including a lack of insight on the part of Mr Sharp in driving while suspended while on bail and presenting in a drunken state before the probation officer, were appropriate considerations. While the Judge does not appear to have given particular weight to Mr Sharp undertaking a course called “One For the Road”, that is not enough of itself to interfere with the Judge’s exercise of a discretion. Likewise his comments about Mr Sharp being untruthful cannot be used to ameliorate the situation from Mr Sharp’s perspective. Those comments align to demonstrate a lack of insight and a tendency on the part of Mr Sharp to minimise what had occurred and what might happen in the future.
[20] There is merit, however, in the submission made by Ms Boyd that rehabilitation is necessary. Mr Sharp has not previously been subjected to a rehabilitative sentence. The special conditions requiring him to undergo programmes required by a probation officer will deal with that after his release from prison. The real question is how long should be served before that release takes effect. In turn, the question is what sentence of imprisonment is necessary to mark the particular offending.
[21] In my view, a starting point (for the combination of offences) of eight months imprisonment was the most appropriate in the circumstances. Taking a 25% credit for the guilty pleas that would result in an effective end sentence of six months imprisonment. That coupled with the special conditions of release and the disqualification orders made by Judge Roberts would, in my view, adequately mark the offending that occurred in this case.
Result
[22] For those reasons, the appeal is allowed. The sentences of imprisonment imposed on both the driving with excess breath alcohol and driving while suspended charges are set aside. In substitution, I impose a period of imprisonment of six months on the excess breath alcohol charge, and one of four months imprisonment
on the charge of driving while suspended.6 The sentences will run concurrently. All other aspects of the sentence under appeal stand.
[23] I thank counsel for their assistance.
P R Heath J
6 I have corrected an error made in open Court in relation to the duration of the driving while suspended penalty. The effective sentence that I have substituted remains unchanged. The signed warrant reflects the terms of imprisonment set out in this judgment.
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