Simeon v Police HC Palmerston North CRI-2011-454-000001

[2011] NZHC 91

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-454-000001

BETWEEN  GEORGE MARAMATANGA SIMEON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 February 2011

Counsel:         J A Younger for Appellant

M R L Davie for Respondent

Judgment:      10 February 2011 10:00:00

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 10.00am on the 10th day of February 2011.

RESERVED JUDGMENT OF GENDALL J

[1]      This is an appeal against a sentence of eight months’ imprisonment imposed upon the appellant by District Court Judge G M Ross in the District Court at Palmerston North on 2 December 2010.  The appellant had pleaded guilty to driving with excess breath alcohol having been convicted at least twice previously of breath or blood alcohol related offences and also to driving whilst disqualified.   Special release conditions were imposed by the Judge and an order was made disqualifying the appellant from driving for 18 months.   The only sentence the subject of the appeal is the term of imprisonment.  The essential submission is that the term was manifestly excessive.

[2]      Originally counsel  submitted  to  Judge Ross  that  the appellant  should  be sentenced to home detention but this argument is not pursued on appeal.   Rather,

however,  counsel  contends  that  the  term  of  eight  months’  imprisonment  was

SIMEON V NEW ZEALAND POLICE HC PMN CRI-2011-454-000001 10 February 2011

manifestly excessive and a sentence in the range of six months’ imprisonment was

all that was justified.

[3]      The background facts are that the appellant had four previous convictions for driving with excess breath or blood alcohol occurring on 5 July 1993, 26 June 1997,

10 December 2002 and 1 June 2010.  The present offences occurred less than four months after the last conviction was entered.   On that occasion the appellant had been   sentenced   to   community   work,   three   months’   community   detention, supervision, and disqualified from driving.

[4]      The  appellant’s  community  detention  and  work  sentences  had  just  been

completed, but he was still subject to supervision when he offended again.   On

26 September 2010 at about 4.10am in the morning he was stopped whilst driving a motor vehicle in Palmerston North.  He had passengers in the vehicle and admitted to the police that he had been drinking.  The evidential breath test returned a positive result of 805 micrograms of alcohol per litre of breath.  The appellant first appeared in the District Court on 30 September 2010 and was remanded on two occasions to

26 October 2010, on which date he entered pleas of guilty and was sentenced on

2 December 2010.

[5]      When imposing sentence Judge Ross said he took as a range for his initial starting point on the lead charge six to eight months’ imprisonment.  He then said an uplift was required for the aggravating offence of driving whilst disqualified.  The Judge then referred to the breath alcohol level being high, twice the legal limit, and the enhanced risk of danger because there were a number of passengers in the motor vehicle.   Judge Ross then revised his starting point to one of ten months’ imprisonment to reflect the overall culpability of the appellant, arising out of his two offences and all the circumstances of his driving.

[6]      The Judge, properly, did not increase the starting point by reason of the previous blood and breath alcohol convictions because, as he rightly said, they are to be incorporated in the starting point fixed for the overall culpability, which was recognised  by the  nature  of  the  charge.    But  the  Judge  said  he  regarded  it  as aggravating that the appellant was still subject to the sentence of supervision for the

similar offending in June 2010 and said that that sentence had been designed to help the appellant avoid the very same situation he found himself to be in. Accordingly, a further uplift of three months was made by Judge Ross.

[7]      The appellant had 19 previous convictions in addition to the four which related to breath or blood alcohol offences, but the Judge did not make any increase for those aggravating features.  He then dealt with personal mitigating factors, which included the guilty plea.

[8]      Somewhat benevolently, in view of the Supreme Court’s pronouncements made on 16 November 2010 in R v Hessell,[1] the Judge allowed a one-third discount. He then turned his mind to the question of home detention and observed that the personal circumstances of the appellant had:[2]

significantly deteriorated in recent times and ... I accept that imprisonment is a far more restrictive sentence but that is appropriate for you on a fifth conviction.

[1] R v Hessell [2010] NZSC 135.

[2] Police v Simeon DC Palmerston North CRI 2010-054-3707, 2 December 2010.

[9]      After  referring  to  well  known  factors  of  denunciation  and  general  and personal deterrence, the Judge observed that the sentence of community detention which had been imposed on the appellant was not sufficient deterrence.

[10]     The pre-sentence report described the appellant as aged 45 years who had increased his alcohol and drug consumption over the past few months, had troubling family dynamics and presented as “resolute rather than displaying remorse”.  He was assessed by the probation officer as having a high risk of re-offending, being:[3]

a recidivist offender, whom [sic] places every member of the community at risk when he drives a vehicle when knowingly intoxicated and when directed not to drive by the court.

[3] Department of Corrections Pre-Sentence Report dated 29 November 2010.

[11]     The probation officer recommended imprisonment.

[12]     On behalf  of the  appellant,  Ms Younger now  accepts  that  a sentence  of imprisonment was proper.  She contends that the appropriate starting point was in the

range of 6-8 months with an uplift of 2-4 months for the aggravating feature of driving whilst disqualified.  But she submits that the additional uplift of three months because the appellant offended when serving a community-based sentence was manifestly excessive.  She submits that there had been changes in the circumstances of the appellant, namely that he now has motivation to change and take treatment for excessive alcohol consumption and to rehabilitate or reconcile with his family.  She contended that a final starting point of ten months’ imprisonment was the most that could have been justified and with a one-third deduction, she said, would lead to an end sentence of six months’ imprisonment (in fact it would have led to something in excess of six and a half months).

Discussion

[13]     The manner in which Judge Ross structured his sentencing exercise was conventional and not open to criticism.   Although Ms Younger presented detailed analysis, in a mathematical sense to support the contention that a final sentence of only six months’ imprisonment was justified, the issue in any sentence appeal must always be whether the final sentence was manifestly excessive.  Factors which the Courts  take  into  account  in  sentencing  for  recidivist  drink  driving  offences  are

discussed by Wild J in Clotworthy v New Zealand Police.[4]   Ms Younger has referred

the Court to that judgment in which Wild J refers to ten factors that he regarded as relevant  in  multiple  drink  driving  related  offending.    In  this  case  there  are  a significant number of those factors present.   They include the high breath alcohol level;   the length of time that elapsed  since the recent similar conviction;   the appellant was a disqualified driver;   the lack of response to previous community- based sentence;   the appellant’s other criminal convictions and the absence of any genuine remorse.  There were no personal family circumstances said to mitigate the offending.  A plea of guilty was deserving of a discount but did not come at the very first opportunity.   An overall starting point of 12 to 13 months’ imprisonment is within the acceptable range to reflect the total culpability of the appellant.

[4] Clotworthy v New Zealand Police HC Wanganui CRI 2003-483-13, 25 September 2003.

[14]     The manner in which the Judge reached his “final” starting point was open to

him.     He  properly  assessed  the  overall  culpability  of  the  appellant  and  the

aggravating features as it related to the offending and to the appellant’s personal circumstances.    If  sentencing  was  a  precise  mathematical  exercise  the  sentence would have been, on the basis of a one-third discount from the starting point of 13 months’ imprisonment, 8.7 months whereas the Judge in fixing the final sentence of eight months’ imprisonment afforded, in mathematical terms a little more than a 33 per cent discount.   But in terms of the Supreme Court judgment in Hessell the maximum allowance for a guilty plea could only have been 25 per cent.  Ms Younger submitted that the one-third discount said to arise from the Court of Appeal decision

in R v Hessell[5]  ought to be applied because the Supreme Court judgment postdates

the appellant’s plea of guilty.  I do not accept that submission.  The Supreme Court decision in Hessell was delivered on 16 November 2010, two weeks before the appellant was sentenced but obviously Judge Ross was not referred to it.  Even if it be that the appellant had pleaded guilty in the expectation that he might eventually receive a one-third discount for a guilty plea, such expectation may well have been optimistic.   Certainly any defence would have been futile and could not have succeeded.   The appellant might count himself fortunate as having been afforded something slightly in excess of one-third discount for the guilty plea.

[5] R v Hessell [2009] NZCA 450.

[15]     Ms Younger submitted that the appellant’s desire to rehabilitate and remorse that he now has must be taken into account as mitigating factors.  But it is often the case that an offender when sentenced to imprisonment then advances a wish to take steps to address offending and claims remorse so as to seek credit for that.  Naturally, guilty pleas and genuine remorse are to be reflected in the ultimate sentence and may form part of the relevant mitigatory circumstances in terms of what the Supreme Court said in Hessell.  But mere claims to remorse when an offender finds himself in the predicament of imprisonment may not of itself justify further concessions.  The appellant had, after his earlier offending undertaken some alcohol related counselling which he ceased and which clearly did not achieve any rehabilitative effect given the later higher breath alcohol reading and the offending.  Certainly it was not apparent from the probation report that the appellant had displayed genuine remorse and a

willingness to confront his alcohol problems.

[16]     Even if the final starting point could have been fixed at 12 months, rather than 13 months’ imprisonment, a one-third discount for guilty plea would still lead to an end sentence of eight months’ imprisonment.   Indeed, applying the approach required by the Supreme Court the best the appellant ought to have expected would have been a 25 per cent discount for his guilty plea, which would have resulted in an end sentence of nine months’ imprisonment.

[17]     The sentence imposed could not possibly be said to have been manifestly excessive and might even have been higher given the generous discount afforded, which was outside the boundary provided by the Supreme Court and which applied

at the time of the sentencing.  It follows the appeal must be dismissed.

J W Gendall J

Solicitors:

J A Younger, Palmerston North for Appellant
Crown Solicitor, Palmerston North for Respondent