Skudder v Police
[2018] NZHC 1448
•15 June 2018
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2018-463-000035
[2018] NZHC 1448
BETWEEN CHRISTOPHER BASIL SKUDDER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 June 2018 Appearances:
S Whitehead for Appellant
E F Collis and S J P Davison for Respondent
Judgment:
15 June 2018
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 15 June 2018 at 4.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Crown Solicitor, Tauranga S Whitehead, Tauranga
SKUDDER v NEW ZEALAND POLICE [2018] NZHC 1448 [15 June 2018]
Introduction
[1]The appellant, Christopher Skudder, pleaded guilty to the following charges:
(a)Refusing to provide a blood specimen (third or subsequent offence);1
(b)Driving while disqualified (third or subsequent offence);2 and
(c)Careless driving.3
[2] On 6 March 2018, Judge Bidois, in the District Court at Tauranga, sentenced Mr Skudder to 21 months’ imprisonment, and disqualified him from driving, pursuant to s 65(2) of the Land Transport Act 1998.4
[3] Mr Skudder appeals his sentence, arguing that it was manifestly excessive. The Crown opposes the appeal.
Relevant facts
[4] On 29 March 2017, Mr Skudder was disqualified from driving for a period of one year, commencing on that day.
[5]Notwithstanding this disqualification, on Wednesday 6 December 2017 at
10.35 pm, Mr Skudder was driving a motor vehicle on Wilson Road North, Maketu. He failed to negotiate a sharp bend and crashed his vehicle. It rolled several times, landing on its roof. Mr Skudder managed to free himself, and emergency services were called. Mr Skudder was transported to Tauranga Hospital, where he was required to permit a sample of blood to be taken. He refused to do so. When he was asked for an explanation, he declined to comment.
1 Land Transport Act 1998, s 60(1)(c). As per s 60(3), the maximum penalty is imprisonment for a term not exceeding two years or a fine not exceeding $6,000. The court must also order the person to be disqualified from holding or obtaining a driver licence for one year or more.
2 Land Transport Act, s 32(1)(a). As per s 32(4), the maximum penalty is imprisonment for a term not exceeding two years or a fine not exceeding $6,000. The court must also order the person to be disqualified from holding or obtaining a driver licence for one year or more.
3 Land Transport Act, s 37(1). As per s 37(2), the maximum penalty is a fine not exceeding $3,000. The court may also order the person to be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.
4 Police v Skudder [2018] NZDC 4360 at [10]-[12].
District Court decision
[6] After setting out the relevant facts and noting Mr Skudder’s personal circumstances, Judge Bidois observed that the sentencing principles and purposes relevant to this offending:5
[4] … include holding you accountable for your offending and promoting a sense of responsibility in you. There is a need for deterrence and denunciation when dealing with offenders who are repetitive drink-drivers …
[7] The Judge then commented on the aggravating and mitigating features of the offending, and on Mr Skudder’s personal circumstances:
[6] The aggravating features that I see are the fact that you are on three charges, there is the combination of not only drinking and driving, but driving while disqualified. There are your previous convictions …
[7] Mitigating factors are your pleas of guilty and some acceptance of responsibility.
[8] I have to assess the overall seriousness of your offending. In relation to this matter these represent your sixth conviction for drink-driving, therefore, a sentence of imprisonment is inevitable. Road safety was compromised because you crashed.
[8] Judge Bidois adopted the charge of refusing to provide a blood specimen as the lead charge.6 He adopted a starting point of 18 months’ imprisonment, commenting:
[9] People who refuse blood, the Court treats their reading at the higher end which would in my view, with your history, justify a starting point on the refusing which is the lead charge at 18 months …
[9] Judge Bidois then increased this starting point by 10 months’ imprisonment to reflect the driving while disqualified charge.7 He gave Mr Skudder what he termed “a one-third” discount of seven months on that starting point, reducing the sentence to 21 months’ imprisonment.8 The Judge convicted and sentenced Mr Skudder to 21 months’ imprisonment, declining him leave to apply for substitution of sentence.9
5 Police v Skudder, above n 4.
6 At [9].
7 At [9].
8 At [9].
9 At [10].
[10] Judge Bidois also indefinitely disqualified Mr Skudder from driving, as he was required to do so under s 65(2) of the Land Transport Act.10
[11] As to the careless driving charge, Judge Bidois convicted and discharged Mr Skudder.11
Submissions
[12] Mr Whitehead, appearing for Mr Skudder, submitted that Judge Bidois erred in three respects:
(a)in uplifting the sentence by 10 months’ imprisonment, after establishing his starting point;
(b)by miscalculating the one-third discount given to Mr Skudder for mitigating factors; and
(c)by imposing a sentence which was manifestly excessive.
[13] Ms Collis, for the Crown, submitted that the sentence imposed was within the available range, and that the appeal should be dismissed.
Approach to appeal
[14]Section 250(2) of the Criminal Procedure Act 2011 provides:
(2)The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
In any other case, the court must dismiss the appeal.12
10 At [12].
11 At [15].
12 Criminal Procedure Act 2011, s 250(3).
[15] A sentence may be set aside where it is manifestly excessive.13 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached. The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.14
Analysis
[16] Under the Land Transport Act, the offences of driving with excess breath/blood alcohol and refusing to provide a blood specimen attract the same maximum penalties.15 The Courts have treated the offences as being interchangeable for the purposes of assessing starting points when sentencing.16
[17] Mr Whitehead accepted that the starting point adopted by Judge Bidois – 18 months’ imprisonment for the lead offence of refusing to provide a blood specimen – was appropriate. He took issue, however, with the uplift of 10 months’ imprisonment for the driving while disqualified charge. He argued that the driving while disqualified charge was taken into consideration when determining the appropriate starting point for all of Mr Skudder’s offending.
[18] There has been some divergence of opinion in relation to sentencing in this area.
[19] Traditionally, sentencing Judges dealing with breath/blood alcohol related offending have referred to the judgment of Wild J in Clotworthy v Police,17 where the Judge set out a table which recorded the starting points adopted in a number of High Court and District Court decisions for the offence of excess breath/blood alcohol (third or subsequent).18 He also identified a number of aggravating and mitigating factors which may be relevant in assessing the starting point in each case, as follows:
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].
14 Tutakangahau v R, above n 13, at [30].
15 Sections 56(3)-(4) and 60(2)-(3).
16 Kumar v R [2015] NZHC 1034 at [18]; Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [1], [24].
17 Clotworthy v Police, above n 16.
18 At [17]-[18].
[20] … In relation to multiple [excess breath alcohol] offending, at least the following ten factors are relevant:
[a]The breath or blood alcohol level.
[b]The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).
[c]Conviction for two or more drink driving offences in close succession.
[d]The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).
[e]Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).
[f]The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.
[g]The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.
[h]The offender's record, if any, of convictions for other types of offending
[i]Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
[j]Any mitigating personal or family circumstances contributing to the offending.
[20] Clotworthy was considered by Whata J in Samson v Police.19 The Judge commented as follows:
[14] I regard items [a]-[e] as aggravating factors for the purpose of assessing the start point for the offending, while [g] and [h] are relevant to uplift for aggravating personal circumstances. Items [f] and [i]-[j] are mitigating factors.
…
[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
19 Samson v Police [2015] NZHC 748.
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. (Citations omitted)
[21]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.
(Citations omitted)
[22] I agree with Mr Skudder’s counsel, and with counsel for the Crown, that the starting point adopted by Judge Bidois of 18 months’ imprisonment for the offence of refusing to provide a blood specimen (third or subsequent) was well within the available range. While the Court does not know Mr Skudder’s blood alcohol level, it
is significant that he told the writer of the pre-sentence report that he had consumed eight 745 millilitre bottles of beer before attempting to drive home. He has six previous convictions for drink driving or similar offending, the most recent of which was in March 2017. His driving was dangerous. He crashed his vehicle.
[23] The issue is whether Judge Bidois’ 10-month uplift for the offence of driving while disqualified was double counting, given that it is an aggravating feature referred to in Clotworthy20, and is given as an example of a seriously aggravating feature in Samson.21
[24] Neither Clotworthy nor Samson are tariff cases as such. There are a range of High Court decisions, as well as District Court decisions, dealing with these offences where they arise out of the same factual context, and the decisions have taken different approaches. Moore J has observed as follows:22
[36] The authorities reveal that there are two judicial approaches which have been adopted when examining the sentencing levels for driving whilst disqualified. The first is that adopted by Duffy J in Peterson v Police. This involves setting a starting point with reference to the instant offending and then uplifting it for previous offending including previous convictions for driving while disqualified. The second approach involves setting a starting point with reference to the driving while disqualified offences as well as any previous disqualified driving convictions. This was the approach favoured and adopted in Drinkwater v Police. This approach appears to have more judicial support although I agree with the comments of Dunningham J in Keenan v Police that in any event the adoption of either approach should lead to the same result.
(Citations omitted)
[25] Here, Judge Bidois set a starting point of 18 months’ imprisonment for the lead charge of refusing to give a blood specimen. He did not justify his starting point on the basis that Mr Skudder was driving while disqualified. Rather, he uplifted the starting point for that offence by 10 months’ imprisonment. While the Judge did not refer to the divergence of judicial opinion, he was not required to do so.
20 Clotworthy v Police, above n 16, at [20](e).
21 Samson v Police, above n 19, at [16].
22 Opetaia v Police [2015] NZHC 2532.
[26] The approach taken by Judge Bidois has been followed by a number of other Judges. I note the following examples:
(a)In Koopu v Police,23 the District Court Judge had adopted a starting point of 16 months’ imprisonment for the drink driving offence and 12 months’ imprisonment for the driving while disqualified offence. Woodhouse J on appeal upheld a cumulative sentence of 21 months’ imprisonment.24 It was the appellant’s eighth drink driving offence and seventh driving while disqualified offence.
(b)In Hemara v Police,25 the District Court Judge had adopted a starting point of 24 months’ imprisonment in respect of both drink driving and the driving while disqualified charges. Thomas J commented as follows:
[11]In this case the Judge adopted a starting point of 24 months' imprisonment in respect of both charges. Even accepting Mr Forster's submission that the driving with excess breath alcohol offending was not at the most serious end of the spectrum, it would still attract a starting point of around 18 months' imprisonment. The starting point would then require an increase of at least six months to take account of the driving while disqualified offending. This could hardly be considered out of range and would result in an overall starting point of 24 months' imprisonment. With the 25 per cent discount for the guilty plea, the end sentence would still be 18 months' imprisonment.
She upheld an end sentence of 18 months’ imprisonment.26 It was the appellant’s ninth drink driving offence and ninth driving while disqualified offence.
(c)In Hughes v R,27 the appellant pleaded guilty to one charge of driving with excess breath alcohol and one charge of driving while disqualified. Both charges arose out of the same driving incident. The District Court
23 Koopu v Police [2013] NZHC 1356.
24 At [9].
25 Hemara v Police [2017] NZHC 1671.
26 At [12].
27 Hughes v R [2012] NZCA 388.
Judge sentenced the appellant to cumulative terms of 18 months’ imprisonment on each charge. The Court of Appeal upheld the sentence on the cumulative basis.28 It observed as follows:
[22] Again, we accept Mr Marshall's submission that s 84(1) applies in the circumstances of the appellant's offending. We are satisfied that the two offences involved in this case are different in kind. As the District Court Judge said, the offence of driving with excess breath alcohol is concerned with road safety. While the offence of driving while disqualified also bears upon road safety, it is primarily concerned with the enforcement of court orders. Those who flout the orders of the court challenge the authority of the court and must be dealt with accordingly as part of the administration of justice. In those circumstances, cumulative sentences of imprisonment are generally appropriate in terms of s 84(1) whether or not they relate to a connected series of offences.
[27] It was open to Judge Bidois to adopt a starting point for the lead charge, and then uplift that starting point to reflect the remaining offending. The uplift was well within the available range – arguably it was modest.29 It was Mr Skudder’s 12th conviction for driving whilst disqualified.
[28] I now turn to the issue of discounts. Judge Bidois stated that he was giving Mr Skudder a one third discount to his overall starting point of 28 months’ imprisonment. However, he reduced his starting point by only seven months. This equated not to a one third discount, but rather to a discount of 25 per cent.
[29] Mr Skudder entered guilty pleas promptly. He was entitled to a reduction in his sentence to allow for those guilty pleas, but such reduction would not normally exceed 25 per cent.30
28 At [22].
29 Keenan v Police [2014] NZHC 1894 – a starting point of 20 months’ imprisonment was adopted for the appellant’s eleventh conviction of driving while disqualified; Affleck v Police [2017] NZHC 3220 – a starting point of 20 months’ imprisonment was adopted for the appellant’s tenth conviction for driving while disqualified; Morrell v Police [2014] NZHC 856 – a starting point of 18 months’ imprisonment was adopted for the appellant’s tenth conviction for driving while disqualified.
30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
[30] The Judge did refer to Mr Skudder accepting “some responsibility” for his offending. It is not clear from his sentencing notes whether or not he was giving an additional discount for this factor.
[31] I do not consider that any additional discount was appropriate. I note the comments in the pre-sentence report.
… He is assessed as high risk of reoffending and high risk of harm based on his well established pattern of recidivist driving related matters beginning in 1989. He has an inability to clearly understand the impact his driving whilst under the influence of alcohol has on others …
Mr Skudder appears to down-play the serious nature of his offending and does not present as remorseful.
[32] In my view, Judge Bidois made a simple error when he stated that he was giving Mr Skudder a 33 per cent discount. Mr Skudder was only entitled to a 25 per cent discount, and that is what he got.
[33] No issue was taken with the indefinite disqualification imposed by the Judge. Nor was any issue taken with the Judge’s refusal to allow Mr Skudder to apply for a substituted community based sentence. Indeed, I note that the pre-sentence report advises that Mr Skudder did not consent to an electronically monitored sentence. He stated that he preferred a sentence of imprisonment.
[34]It follows that, in my view, Judge Bidois did not err in the sentence imposed.
[35]The appeal is dismissed.
Wylie J
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