Sherley v Police
[2012] NZHC 1499
•25 June 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000129 [2012] NZHC 1499
MARK HAYDN MACKAY SHERLEY
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 25 June 2012
Counsel: S Cullen for Appellant
S McMullan for Respondent
Judgment: 25 June 2012
JUDGMENT OF ASHER J
Solicitors/Counsel:
S Cullen, PO Box 5708, Wellesley Street, Auckland 1141. Email: [email protected]
Crown Solicitor, DX CP24063, Auckland 1140. Email: [email protected]
SHERLEY V NZ POLICE HC AK CRI-2012-404-000129 [25 June 2012]
[1] Mark Sherley appeals against the sentence imposed upon him by Judge
Dawson[1] for driving with excess blood alcohol and driving carelessly.
[1] NZ Police v Sherley DC North Shore CRI-2011-044-7916, 28 March 2012 at [10].
[2] His offending occurred at about 5pm on Wednesday, 2 November 2011. He was travelling east on Northcote Road and failed to successfully negotiate the stopping distance between him and the vehicle in front. He collided gently with the rear of that vehicle causing for all intents and purposes no damage. Unfortunately for him the vehicle was a police car. Mr Sherley was required to undertake a breath test procedure. The level was shown to be 1053 micrograms of alcohol per litre of breath. He entered pleas of guilty at an early stage.
[3] On the breath alcohol count he was convicted and fined $1,100 and ordered to pay court costs of $132.89. He was disqualified from holding or obtaining a driver licence for 12 months. He was also sentenced to nine months’ supervision and was ordered to undertake such counselling (including alcohol counselling and treatment) as decided by a probation officer. Mr Sherley was fined an additional
$300 on the careless driving charge.
[4] Mr Cullen for Mr Sherley submitted that the sentence was manifestly excessive, and that the sentence of supervision was made without a proper basis under s 46 of the Sentencing Act 2002. He submitted that there should have been no term of supervision imposed, and also that the period of disqualification of 12 months was unduly harsh. He did not contest the fines totalling $1,400.
[5] Mr McMullan for the respondent accepted that the sentence was stern. He submitted that the sentence of supervision was not primarily a punitive sentence and could be seen as aimed at assisting the offender. He argued that the end sentence
viewed as a whole was not out of proportion to the gravity of the offending.
[6] It is necessary by way of relevant background to say something more about
Mr Sherley, the facts of the offending, and the events that followed.
[7] Mr Sherley was not represented at the time he was sentenced. He now has experienced counsel, and has without objection filed an affidavit in this court. In it he sets out with clarity matters that may well not have been fully explained to the Judge on sentencing.
[8] Mr Sherley is pursuing a career in physiotherapy. On the night in question he had completed his final undergraduate examination and had been celebrating with friends. As he himself says he “foolishly overindulged” and then he made the “abysmal decision” to get behind the wheel of his car and drive. He weighed only
72 kilograms and had not eaten all day. Given that he had sat the exam he was exhausted and somewhat overwrought. He was well over the legal limit. Mr Sherley asserts that he has no alcohol problem and that this was a one-off event. Indeed, he states that he has now greatly limited his drinking and does not drink socially at all.
[9] When the matter was first called he appeared before a Community Magistrate. He was told by the presiding Magistrate that if he did not attend a “CADS course” (this being a course of alcohol counselling) a sentence of community work was a likely outcome. This advice was endorsed on the information, “Defendant to attend CADS course 25/3/12 – otherwise community work indicated.”
[10] Mr Sherley therefore attended and completed a CADS course. He then came up for sentence. Not having a lawyer with him he did not understand that he was at risk of a sentence of a term of supervision. He was most surprised to receive such a sentence. He makes the point in his affidavit that he is of good character and achieved very high grades in his degree. He explains how the imposition of a disqualification alone has hamstrung his daily activities.
[11] The Court will intervene if the sentence is manifestly excessive. It will also review the sentence if it can be shown that there was a clear error in the process of reasoning followed by the sentencing Judge.[2]
[2] Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].
[12] There are two unusual aspects about this sentencing. First, Judge Dawson may not have had his attention drawn to the fact that it had been indicated to Mr Sherley that he should attend a CADS course “otherwise” community work might well be the sentence. Rather than it being a mitigating factor, the fact that Mr Sherley had attended the CADS course may have led the Judge to think that he had an alcohol problem. The requirement for counselling that the Judge imposed at [10] would tend to indicate that he thought Mr Sherley could have such a problem.
[13] In fact there is nothing on the file to indicate that Mr Sherley had such a problem. I accept that he does not. It can certainly be understood that Mr Sherley would have regarded it as most unjust that having done what he was told and attended the CADS course he should, without getting any credit for doing so, be sentenced to supervision. Supervision, in the hierarchy of sentences, is at the same
level of community work.[3] So the implicit indication by the Community Magistrate
that he would not receive such a sentence if he did the CADS course has not been fulfilled.
[3] Sentencing Act 2002, s 10(a).
[14] The second matter to be noted is the lack of any reference in the sentencing decision to s 46 of the Sentencing Act 2002 which imposes a preliminary requirement before a sentence of supervision can be ordered. Section 46 provides:
46 Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
(emphasis added.)
Although the section heading refers to “guidance”, the phrase “only if the court is satisfied” makes it clear that the section imposes a requirement that must be met if supervision is to be ordered (i.e. that the court is satisfied that a sentence of supervision would reduce the likelihood of further offending through the offender’s rehabilitation or reintegration).
[15] The Judge does not address this section or the test. It is difficult to see how he could have been “satisfied” that supervision would reduce the likelihood of further offending. There was nothing before him, except quite possibly an erroneous inference from Mr Sherley having attended the CADS course, to indicate that Mr Sherley had any alcohol problem at all.
[16] I have sympathy for the Judge’s situation because it is unlikely that Mr Sherley (who was unrepresented) properly put before the Judge the fact that his offending was very much a one-off event by a person of good character. The Judge may not have appreciated why Mr Sherley attended and completed the CADS course. However, the fact is that a sentencing court must be satisfied that the sentence of supervision will reduce the likelihood of further offending. The Judge could not have been so satisfied on the facts, as they are now revealed. Mr Sherley did not need to be supervised to stop further offending.
[17] A sentence of supervision is a significant sentence. It ranks as more serious than fines and reparation. It can involve a very considerable imposition on personal liberty. The offender is required to report, to live and to take employment where directed, and not to move without permission.[4] There can be a requirement imposed by the probation officer on the offender not to associate with any specified person, and a requirement to take part in a rehabilitative or reintegrated needs assessment.
[4] Sentencing Act 2002, s 49(1).
[18] A sentence of supervision cannot be imposed if the s 46 is not met. I
conclude that there was no good reason and no basis for the imposition of a sentence of supervision. For this reason alone the sentence of supervision must be quashed.
Was the sentence manifestly excessive?
Fine and disqualification
[19] The Judge observed in relation to the culpability of the offending, that the alcohol limit was two and a half times over the legal limit and was “extremely excessive”.[5] He noted the collision (while also observing that there was no damage). He stated that by driving with this excessive level Mr Sherley put other people’s lives and safety at risk.
[5] At [5].
[20] The Judge did not carry out the R v Taueki[6] process of assessing culpability in reaching a starting point, assessing the aggravating and mitigating factors relating to the offender personally, and finally in accordance with R v Hessell[7] applying a discount for any guilty plea. It is understandable in sentencing at this level where there is no question of the imposition of a period of imprisonment, that no strict Taueki train of reasoning is adopted. I recognise that the requirement to impose a minimum term of disqualification and the protection of public safety rationale that lies behind the sentence of disqualification, makes it awkward to apply Taueki reasoning. It must also be recognised, applying Hessell, that a low percentage discount for a guilty plea can be appropriate, given the inevitability of conviction on a positive breath alcohol reading.[8]
[6] R v Taueki [2005] 3 NZLR 372 (CA).
[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[8] R v McQuillan CA129/04, 12 August 2004 at [24].
[21] Nevertheless, transparency in the sentencing decision of any increases or discounts for personal aggravating or mitigating factors and any guilty plea will inform the parties that relevant sentencing factors have been recognised.
[22] As to the tariff, some assistance can still be obtained from the analysis done by the full Court in McEachen v Police[9] in 1995. It was said that the average fine for a first offender is generally:
[9] McEachen v Police [1995] 2 NZLR 251 (HC) at 253.
(a) With a low blood alcohol level, $534;
(b)With a medium blood alcohol level (two to two and a half times the legal limit), $801; and
(c) With a high blood alcohol level (two and a half times or more the legal limit), $1,058.
The Court said as to the average disqualification for a first offender:
(a) With a low blood alcohol level, six to 12 months was appropriate;
(b)With a medium blood alcohol level (two to two and a half times the legal limit), six to 12 months; and
(c) With a high blood alcohol level (two and a half times or more the legal limit), six to 18 months.
Although the value of money has changed since 1995, the relativities referred to are still of assistance.
[23] In relation to Mr Sherley’s breath alcohol limit, the culpability was at the highest level. If an allowance is made for inflation, and for Mr Sherley’s careless driving, the total fine of in excess $1,400 was in the range, as was a disqualification in excess of six months.
Supervision
[24] It was not suggested in McEachen that for a first offender supervision should as a matter of course come into the sentencing equation. This is consistent with recent decisions in relation to first offenders. Mr Cullen observed that he has not come across any case where a sentence of supervision has been imposed in addition to a significant fine and disqualification for a first offender. Mr McMullan has not been able to put forward any such authority.
[25] I have had particular regard to three decisions. In O’Malley v Police[10] there was an unsuccessful appeal against a sentence of $1,000 fine and six months disqualification and court costs. The appellant had been charged with driving with excess breath alcohol (there being no careless driving aspect). The reading was 850 micrograms of alcohol per litre of breath. The appellant was a first offender.
[10] O’Malley v Police HC Christchurch CRI-2009-409-209, 11 March 2010.
[26] In Lee v Police[11] there was a successful appeal against a fine of $1,000 and
12 months disqualification from driving and court costs. The appellant was charged with careless driving. His reading was 562 micrograms of alcohol per litre of breath. He was a first offender. On appeal the period of disqualification was reduced to eight months.
[11] Lee v Police HC Christchurch CRI-2008-409-217, 12 February 2009.
[27] In Fox v Police[12] there was a successful appeal against a sentence of 150 hours community work and six months disqualification. The appellant was charged with driving with excess blood alcohol and again there was no careless driving aspect. His reading was 400 micrograms of alcohol per litre of breath. He was aged
17 and a first offender. There was no fine imposed but on this occasion there was a sentence of supervision imposed, replacing a sentence of community work. The Judge there was clearly of the view that the appellant had an alcohol problem.
[12] Fox v Police HC Hamilton CRI-2010-419-49, 23 August 2011.
[28] In none of these cases was supervision imposed as well as a fine and disqualification. They indicate that the sentence of supervision, as well as not being justified under s 46, was manifestly excessive.
The correct end sentence
[29] I am left with the view that to impose a sentence of supervision in the circumstances of this case was excessive, and did not fall within s 46.
[30] A high degree of culpability must attach to Mr Sherley’s high breath reading
and there was some further culpability arising from his careless driving. Thus a sentence of a fine of over $1,500 and disqualification of nine to 12 months before
applying personal factors and discounting for the guilty plea would have been appropriate.
[31] Mr Sherley was entitled to a credit for his early guilty plea and for his remorse and good character. These were mitigating factors that operated to reduce the appropriate end sentence to a fine of less than $1,500 all up. A disqualification of around nine months was appropriate.
[32] Therefore, taking all these factors into account I am satisfied that the fine was within range. However, there should have been no sentence of supervision. Further, I consider the sentence of 12 months disqualification to be in all the circumstances clearly excessive given the fact that Mr Sherley was a remorseful first offender and of good character. Having regard to the culpability of the offending and these mitigating factors I consider that the appropriate disqualification sentence was a disqualification of nine months rather than 12 months.
Result
[33] The appeal is allowed. The sentence of supervision is quashed.
[34] The sentence of 12 months’ disqualification from the date of sentencing of
28 March 2012 is reduced to nine months.
[35] The fines totalling $1,400 and the order of court costs of $132.89 stand.
……………………………..
Asher J
8